Mind-Brain-Law Reading Group

In 2013, I launched a reading group for a small group of excellent students at the University of Ottawa, Faculty of Law. Together, we are considering the interesting ethical and legal questions raised by the behavioural sciences, particularly cognitive neuroscience. Summaries of selected meetings are included here:

In this session, Mind-Brain-Law considered a potential effect of neuroscientific explanations of behaviour in the field of human rights law. In particular, we are asking about how we define “disability” in human rights law. This ends up mattering a good deal because human rights law protects people from discrimination on the basis of disability in numerous contexts, such as employment, residential accommodation, provision of goods and services etc. The law demands that we take steps to provide “reasonable accommodation” of disabilities, and so constitutes a legally-enforceable claim to the resources required to accommodate disability.

This is a variant of the much more frequently-discussed theme in law and neuroscience: namely, whether neuroscientific causal explanations of behaviour should reduce moral blame or not. This is a much-debated proposition in the field. Regardless of whether it makes sense, there is evidence that biological explanations of behaviour do alter attributions of moral and legal responsibility. The explanation for this is the tendency to regard people with biologically-caused behavioural problems as having diminished control over that behaviour.

Might similar thinking also affect our willingness to recognize behavioural problems as emanating from a “disability” that is protected under human rights legislation?

19 Feb 2016 Juvenile Criminal Responsibility and Brain Sciences

Our topic this time is one of the oldest problems in law and moral responsibility. On what basis do we hold people “responsible” for their actions. The law does not tend to worry too much about the question of free will and determinism, and whether we can hold anyone responsible if our actions are in fact determined. Instead, the law tends to focus on capacity, and treats people with diminished capacity (due to mental disorder or immaturity) as less blameworthy, either excusing the behavior altogether or mitigating punishment. However, as research into the biology of mental states and behavior proceeds, questions are being raised about whether legal systems will accept the claim “my brain made me do it”?

Psychosurgery is controversial (particularly in North America due to the history of the “lobotomy” in the mid-20th century), but there are now other forms of intervention, such as deep brain stimulation that are being explored for treating very serious intractable mental illness. In fact, DBS is approved for depression in some places, and is being explored for other applications as well. The Ontario Mental Health Act regulates “psychosurgery” in section 49. It defines “psychosurgery” and also says that only first-person consent is permitted. This means people who are incapable cannot have “psychosurgery” because substitute consent is not allowed. Not all jurisdictions restrict access in this way.

The US FDA recently received an application for a combination of a popular antipsychotic drugs with an ingestible sensor that keeps track of when the drug is taken. Patient empowerment and/or coercion and surveillance of medication compliance?

Deep brain stimulation (DBS) with implanted electrodes has been used for over a decade to treat movement disorders. It is now being used experimentally for other conditions, such as Tourette Syndrome and depression. It can have unintended effects, sometimes pervasive enough to change facets of a patient's personality.